Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Monday, September 10, 2018

Standards of proofs in sequential merger control procedures

Gregor Langus (CET, European Commission); Vilen Lipatovz (Compass Lexecon Brussels); Damien Neven (Graduate Institute of International and Development Studies) offer Standards of proofs in sequential merger control procedures.

ABSTRACT: We model merger control procedures as a process of sequential acquisition of information in which mergers can be cleared after a ?first phase of investigation. We fi?nd that the enforceability of clearance decisions at the end of the fi?rst phase is unattractive to the extent that it prevents the authorities to use their expectations as to whether evidence gathered in the fi?rst phase will be confi?rmed in the second phase. This deprives the ?first phase of its potential as an effective screening mechanism. We also fi?nd that when clearance decisions in the fi?rst phase are enforceable, a different (higher) standard in the fi?rst phase is only desirable when Phase I decisions are captured by merging parties (as opposed to complainan ts).

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